tv Key Capitol Hill Hearings CSPAN December 4, 2013 1:00am-3:01am EST
coworkers, tell your neighbors. let's help our fellow americans get covered. let's give every american a fighting chance in today's economy. all right. thank you so much, everybody. god bless you. [applause] [captions copyright national cable satellite corp. 2013] [captioning performed by national captioning institute] [cheers and applause]
>> know we will hear from the white house chief of staff denis mcdonough who will apologize for the problems with healthcare.gov . he says the website is functioning better since the october one launch. he spoke at georgetown university. former also hear from democratic senator, tom daschle. [applause] , it is nice to see all of you this morning on a wonderful morning to talk about a very important subject about this country. is achair keith -- cherokee chief indian once said, timing is everything. right now. implementation of the affordable care act, opportunities and
challenges. we have an excellent program today. we have two terrific speakers. we have denis mcdonough and tom daschle. we also have a panel that will be moderated with a number of distinguished people on the panel. that will be the day. we will have an opportunity for some questions and answers along the road. that introduced the chief of staff of the white house, denis mcdonough. it is one said and they assume the northern great planes spirit of denis mcdonough exists. it is perfect for any chief of staff of the white house at any time. he said we were basically people who taught us that life is an enormous struggle. if at some moment you feel very happy, be patient. it will pass. [laughter] ,tillwater, minnesota
georgetown university, a chief -- and then an adviser in the white house and not chief of staff to the president of the united states. is welcome denis mcdonough. -- please welcome denis mcdonough. [applause] good morning, everyone. thank you to georgetown university for holding this discussion on affordable care act. thank you to the two senators from the northern plains. has been anhle important mentor to me. good to see you again as well, senator. i appreciate the opportunity to talk about the affordable care
act and what it has done and what it is going to do. i will update you on the progress we have made on fixing the website, healthcare.gov. before i talk about the law and its benefits, let me tell you about a visit i made to the emergency room on a friday night recently with one of my boys after he broke his left arm. excellent.s so much of our emergency trauma and specialized care is. what was remarkable to me is not the care that my son got as grateful as i am, but rather the crying of two babies i heard in their emergency room being treated for asthma. dramatic asthma attacks. i cannot know for sure whether those babies were insured or not. if they did have coverage and the access to primary care that comes with such coverage, chances are it would have been far less likely to be getting
emergency care for something like asthma on a friday night in the emergency room. parents broke full as -- my heart broke for those parents. they seek care for their suffering child in the emergency room. we are talking about asthma, something increasingly and sadly common, but also fundamentally treatable. dell with and the emergency room, which "the new york times" in great caret reminded us is the single most expensive place to get treatment. there seems to be a strange outbreak of nostalgia for the affordable care act health care system that covers too few and a maddeningly inefficient and a very expensive
way. the personal impact is clear. think about the couple and their young baby on a friday night. there are also huge costs and economic implications of that system. it had been the norm until three years ago. we spent far more as an economy with the growth and per capita terms for a system that delivered last effective outcomes for a smaller percentage of the population. in short, quoting someone i know well, we were spending more each year and getting less. economies suffered and all of it was unnecessary. fighting to deliver quality affordable care and the security that comes with it to every american is paramount.
making sure everyone gets a fair shake and as we continue to rebuild our economy and a better middle class and that is what the affordable care act does by using touchtone american values of transparency and competition to improve health care protections and affordability for those americans who already have insurance and to provide new affordable care act and sort consumers who don't have the haver consumers who don't it or want to switch their insurance. we finally put in place real solutions that will continue for decades to come. reforming the system is not an easy task. i have worked on many complicated issues. peace in the middle east, iran, but it deals.
-- and budget deals. reforming the health care system is the single most complicated issue i've faced and does the president often says there is a reason why folks try. is it worth getting a grip on health care holding back our entire economy? you bet. fixing the broken healthcare system has been a labor of love. it is personal for him, as it is for many of you. he knows for each and every american, getting it right, it's about making people's lives better. while i'm here, let me spend time describing how the law does these two key things, providing security and improving our economy. i will talk about how we're doing all we can to implement the law the right way fairly and
flexibly. that includes learning from our experiences with healthcare.gov. the affordable care act fixes n/a the most harmful in wasteful -- many of the most harmful in wasteful aspects of the system here to for. people who already have healthcare coverage before, let me give you a few statistics. thanks to the affordable care act, 105 million americans including women are paying less for preventative care. we are investing in keeping people healthy rather than treating them when they are sick. 105 million americans are no longer subjected to lifetime limits on their coverage. up to 129 million americans
including 17 million kids, 17 million kids who have a pre- existing condition for which they could have been denied coverage are charged more and they are now protected because charging more or denying coverage will be prohibited as of january 1. 7.3 million seniors and people with disabilities who reached the doughnut hole of medicare prescription drug coverage have saved a $.9 billion on prescription drugs. -- $8.9 billion on prescription drugs. this year, those helping a $.5 -- $8.5 billion get money back in their pockets by making sure the premium dollars go to healthcare not overhead or profits. 3.9 billion in premium savings were returned to americans as accountability and transparency policy came through. new major marketplaces and the choice and competition will give a majority of uninsured
americans the chance to buy health care coverage for less than $100 a month. think of that for one minute. here uninsured people are now going to do their personal responsibility to get covered so it is their coverage that covers them and not the rest of us when they are forced to get treated in the emergency room. thanks to the affordable care act, states can change their medicare to cover even more uninsured americans and many of them don't have enough to allow them pay. they have said yes to covering more people including states with conservative governors like ohio, michigan, arizona. if every governor followed suit we could cover another 5 million americans. we're going to keep urging those
leaders to do the right thing and to expand coverage at no cost to themselves for the next year. a new report out today shows that in october alone, not counting states like texas, one point 4 million people gained eligibility and medicaid and the children health insurance program. that is up 15% from previous months and more to come. those are just a few of the highlights of the law. on top of these benefits, the impact on our economy will be profound and we are already seeing a significant slowdown in the rise of health care costs and the lowest level of healthcare price inflation in the 50 years. in the short run, increasing employer incentives to hire new workers. in the long run, what we save shows up as higher paychecks for workers and lower deficits for the government.
indeed, the cbo estimates in the second decade, once the aca is in effect it will shave 0.5% gdp off the deficit every year. that's about $80 billion each year in today's economy. the new york times reports this morning that the cost of the aca is headed in the other direction. economic benefits are going up and costs are going down. how do we implement all these benefits to make sure it translates into better care for every american? a lot of the benefits are in place, as i said, americans had been benefiting since 2010 but what we have to do is keep spreading the word so americans know these options are available to them. for americans without insurance, we are working to help get them covered and this is where much of the attention has been since
october 1. the new health insurance marketplace will help insure millions of hard-working americans find affordable health care. in states where they are working to make this law work for more of their federal citizens, people are signing up in droves. 50,000 people have signed up in new york. 80,000 in california. 9000 in kentucky. other states are utilizing the federal marketplace. let me talk a little bit about that marketplace. as you know, the website did not work the way it should have on
october 1. that's on us. that's on me. as soon as we realize there were problems, we put a team of experts to work and as promised it is working better than now and will work better tomorrow and by the weekend, even better. we will continually improve. the team has doubled the website's capacity to handle 50,000 users at once or over 800,000 users per day comfortably. the average response time has gone from eight seconds to under one second. response time being the measure of time to collect from one page to another on the site. the number of people successfully enrolling is climbing while the error rate has gone from 6% to under 1%. inching closer to industry standard for such websites. we are getting back on track and we will keep improving to make sure that it is what is best for users. we're making the site more user- friendly. the new waiting room instituted pretty well. they requested that they be e-
mailed at a time to be invited back. all of them were invited back the same day. half of them accepted the invitation to go back and they viewed on average 24 pages during their return to the site. while we are welcoming new users and we saw over one million of them yesterday, over one million new visits -- we will also make it a special priority to reach out to those users who have already submitted applications but have yet to actually enroll in a plan. we will make sure that those customers who have selected a planned everything they need to do to make sure they're covered on january 1. we want to make sure everyone is taking the steps necessary, that they have the affordable coverage come january 1. ultimately, we believe that it will be the easiest way for americans to compare and buy quality, affordable healthcare insurance having brought transparency and competition to a market that had been closed
and opaque. as you heard the president say, the affordable care act is much more than a website. we have learned from our experience the past few months and the overwhelming interest we've seen from consumers in the first two months reminds us just how strong the demand is for quality affordable insurance options and that strengthens our resolve to make sure that this law works for every american. no matter what have a we will see this through. we are going to make this law work and as problems arise and we will fix them, just like we are fixing the website. as president obama has said from the very beginning, he's working -- he's willing to work with anyone to make this law work better. it's in the united states of america and the affordable care should never be the privilege of a lucky few but rather a right for every american.
the affordable care act gives us an option to make that realistic and we intend to see this through. thank you very much for the opportunity to be with you. [applause] >> denis, thank you. he needs to get back to the white house but let me just mention to you the effort it took for dennis to be here. originally, we had chris jennings scheduled to come and this weekend, he determined he was not able to be here for other reasons and the chief of staff said he would come and provide a speech and that was very generous of him as well. he needed to get back to the white house but thanks to denis mcdonough, a friend and somebody that i think serves this country very well.
next, i have the opportunity to introduce my friend tom daschle from aberdeen, south dakota. there is a theme here. stillwater, aberdeen, north dakota. i will not tell any south dakota jokes because tom has heard them all. but i will tell you that we have been personal friends for almost four decades now. as i said, he grew up in south dakota and he is a military veteran. he got involved in politics and became the geordie leader of the -- majority leader of the united states senate. i think he's the only person who has ever served in leadership in the senate he was majority leader twice and minority leader twice over one of the longest- serving majority leaders in this country. he is a healthcare expert and has written two books on this and he lectures across the country on the subject of healthcare.
he is a senior advisor and he has agreed to join us today. he will give a presentation and take some questions. welcome, tom daschle. [applause] >> byron, thank you for that generous introduction and thank you all for your warm reception this morning. i really appreciate the opportunity to be with you and to talk, as dennis has, about something we all care deeply about. i think it's appropriate that i'm the third in this line of midwestern speakers -- minnesota, north dakota, the gateway to south dakota and it's only appropriate that i come third. [laughter] dennis, byron, and i grew up in states where, in most of the communities, you put entering and leaving on the same post. most kids are about seven years old when they realize the name of their town is not "resume speed."
we have a lot in common. you can understand why i'm as proud of dennis's work and commitment as i am this morning. i've known him for close to now 20 years and i had the good fortune to work very closely with him even after i left the senate. and i have the opportunity to work together. it's a real honor to have heard him this morning and to see him again doing such good work. let me also thank aaron fox and gw for hosting this important program. did i say gw? i'm sorry. georgetown. of course, judy is here. i appreciate the opportunity to be here with you and thank you for the leadership you have shown in making this possible. i was going to begin my comments by talking about a little bit what we should think about as we contemplate our certain circumstances and health but i
think dennis has done such a good job laying out many of the things that i was going to address that in the interest of time, i will simply restate what is obvious to most people and that is that we have made enormous progress over the course of the last three years, enormous progress in changing the paradigm in health, reducing cost, improving access, and even committing to improve quality. as we consider that progress, there are many things for which i think there is a lot more bipartisan agreement than we often read about in the news media and i want to talk a little bit about where i think the areas of agreement really are and get into some of the details about our future as we look to the enormous work that still remains with regards to health. obviously, this is a very transformational time. i would suggest and assert that
it is the most transformational we have seen in all of our countries history. the magnitude of change that we've experienced and will experience over the course of the next decade is just the beginning of an appreciation of what a transformational opportunity and challenge there is. therein lies both opportunity as well as payroll. those who would somehow resist this change and argue against making this new health paradigm a much more conducive environment. ultimately, i think they stand to lose a great deal as we go forward. as i considered the achievements and this transformational moment , the one thing i would say is that there are a couple characteristics of the american health sector that are going to
remain somewhat unique to america. the first, i would argue, is that unlike every other industrialized country, the united states has never really had what i would call a system. we refer to it as a healthcare system but if you define a system as having a central administrative and decision- making authority, we have never had that. what we have is a collage of subsystems, public and private. medicare and medicaid subsystems being some of the more public but we also have entitlement character the veterans administration and uncompensated care that we all pay for in very inefficient ways in the emergency room and in other ways as people are unable to pay for their own health care. all of those subsystems, that
collage, represents one of our greatest strengths in that it has brought enormous innovation but it is also extraordinarily inefficient and the fragmented nature of those subsystems continue to plague endocrine problems that we are attempting to address and that dennis can a good job this morning outlining. the second characteristic of our healthcare sector is the nature of our healthcare pyramid. i've always advocated that all health in any society looks like a pyramid where at the base you have a wellness and good primary care and you become more and more sophisticated, more and more technologically inclined with the applications at the top of the pyramid being the most sophisticated we have today, heart transplants, mris, very technical applications. that pyramid, it works about the same way and almost every society where they start at the base and work their way up until the money runs out.
in the united states, we started at the top and work our way down until the money runs out. the money runs out so we don't have the kind of emphasis on good primary care and a good wellness program that most other pyramid mid models offering these industrialized countries today. these are ones that will continue to be grappled with. we will not have a system as we define it and we will not have a bottom to top pyramid. can we cover the entire pyramid from top to bottom with better allocation of resources, greater efficiency? that is essentially what we are trying to do as we go forward. there are a number of areas for which the really find really little disagreement. i cannot find a conservative or someone on the left or the right who would argue that we don't have in the scheme of things a real cost problem today. dennis addressed it.
certainly, we have made enormous progress in the last couple of years and we are now at the lowest cost growth we've seen in all of history but if you look at what happened on cost in the united states, just think about the fact that we spend more on health than the next 10 countries in the world combined. we spend more on health than the entire gdp of india, russia, or brazil. when i was born, health was four percent of the gdp. when my children were born, 8 are sent. when my grandchildren were born, 17% and now we are told if i'm
lucky enough to have great- grandchildren and historic trends continue, 32% of gdp. there is not a conservative or liberal in the world who would argue that it is not a problem going forward. as i said, we're making progress but if we were not making progress, the inevitability of that trend is something that we simply cannot sustain. we also have no disagreement really with regard to the fact that there are a lot more people uninsured and not getting the access to care they should in a country as rich and powerful, as good, as ours. i'm lucky to serve on an advisory board at harvard and they recently released a report that really struck me. my town, aberdeen, south dakota, a town of about 25,000 people in
the reason this report struck me was because it noted that now on average, every year, about 25,000 people die simply because they have no health insurance. my town of aberdeen, south dakota, the equivalent, dies every year simply because they don't have access. i think that number is conservative. i would tell you that's unacceptable in this day and age in this united states of america. we also have a quality program -- problem and there was little difference of opinion. something's wrong but over and over again we fall far short even though we spend more than anyone else in the world. we recognize that on cost, access, and quality, it's not even an ideological issue. i will end my piece of bipartisan analysis on this, what we state what our goal is going forward no one disagrees with the assertion that we
should have a high-performance, high-value healthcare marketplace with better access, better quality, better costs. i don't know how you disagree with that and i've never been in a venue where we spend a lot of time together talking about health where we all agree that's really what we're trying to do, build a high-performance healthcare with better quality and lower costs. what i find is that even though there is all of this agreement on the problems, if we had more time, i would get into the causes of those problems and there are a significant degree of agreement on that but i would just cite one, the lack of transparency.
healthcare is the only sector and our economy where we don't know what it's going to cost or who's going to pay. we have more information on every sports figure than we do on every provider in this country. transparency is a real problem because you cannot fix what you cannot see. we cannot see what we have as problems on a regular systematic basis when it comes to health. there is no disagreement about that. the fundamental disagreement among republicans, democrats, liberals, conservatives today is really what is the proper role of government as we address those problems? as we address those causes? as we reach that goal?
that is really where the divide is today. our challenge is to overcome that realization, the issue about the role of government and tried to find ways with which to address a meaningful health reform recognizing the deep division that exists with regard to that central factor, what is the role of government today? in 1900, a government comprised about 15% of all health, 15% government related. in 2011, for the first time in history, government equal than slightly surpassed the private sector with regards to the insurance subsystem i described the moment ago. for the first time in 2011. we are at about a 50-50 approach with regards to health. as the affordable care act was being contemplated, i would just take a minute to talk little bit about history because i think it's important that this be put
on the table. i don't think the president gets nearly enough credit for it. i had many conversations with him and others over those early stages and i will never forget as he was contemplating what model to use, there was a lot of pressure in his party going back to this question of government, to say that what we ought to have in this country is a single-payer system, medicare for all. it's what we need. medicare for all, a single-payer system like a lot of other industrialized countries especially in europe. you know what his answer was? i don't think we will ever get bipartisan support if we tried a single-payer system going forward. i'm going to take the heritage
foundation proposal that they came up with in 1993 and we will use that as the model, the basis for the legislation because i want to see if we can find bipartisan support. >> ok, we will accept that, although we think a single-payer system would work better but at the very least, when you offer these exchanges, there ought to be a public option. you ought to be able to go to every state and pick medicare for all if that's your choice. he says he wants to keep it bipartisan and we will never get republican support if we have a public option. they said, we strongly disagree but at the very least, you want to let government negotiate drug prices and allow importation, something byron really advocated for.
having the ability to negotiate prices is what they do at the veterans administration and the president wants again said he wanted to try to keep it i partisan so he vetoed that as well. unfortunately, we were not able to get very far in creating the bipartisan consensus that he really attempted to produce but we are where we are, the two pivotal moments that occurred in 2012 that bring us to the current circumstances, this two pivotal moments where the supreme court decision that the law was constitutional and the election where we chose one later who advocated one approach over a later advocated another. as we look going forward to the next five years in particular, i would say that there are going to be five very specific levels within which all of this is going to unfold and for which we will see enormous transformational change. the first and most imminent factor perhaps will be congress itself. congress is unlikely to change
the affordable care act finding the necessary votes in both the house and senate and getting the necessary presidential signature so i don't expect any immediate changes with regards to the law itself but we do have an enormous opportunity to change the public programs, medicare and medicaid recognizing that it is a significant budget and cost driver and realizing that by simply changing these two major programs, they can be an engine for change in the entire healthcare marketplace. there, congress has a choice between cutting programs and just shifting the cost on to somebody else, which we have done all too often or redesigning and improving those programs in a way that can bring meaningful change, greater efficiency, and far more opportunity for improvement in
access, cost, and quality today. i'm very hopeful that over time congress will choose the latter and look at the ways with which many organizations have already offered suggestions for redesign and improvement. i have the good fortune to work on two of them myself. one of the bipartisan center around one at brookings where we released reports giving a significant analysis of rogue rams and ways with which they could be redesigned and improved quality. that's the first level. a very important level, as i said, that will be necessary going forward. the second level is the courts. there are a few stories in the
paper today about or challenges on mandates, court mandates on contraception, independent payment advisory board thomas and a number of other very critical issues that are yet to be resolved legally. those issues are still pending in various levels through the cord and will have a very consequential impact on what happens with the new paradigm in health as we go forward. the third is the administrative and regulatory efforts underway now in the executive branch that dennis talked a lot about. there are three components in the administrative and regulatory framework that are very critical. the first is the one we've heard the most about and that is insurance reform. new protections and the fact that we no longer will have to do with pre-existing conditions, lifetime limits, annual limits,
something byron spent a lot of time working on when he was in the senate and bob in it as well. he was an extraordinary effective leader on the republican side on many of these reforms of both republicans and democrats were seeking answers to. insurance reform, most evidenced by the creation of these 50 exchanges and with new protections, new products, new services, all offered on the exchange marketplace and that will be the first component that will have a profound effect as we go forward on virtually every american whether they are in the individual marketplace or not. the second component is not getting as much attention as it will when we go forward and that is meaningful payment reform. one of the biggest cost drivers is the fee-for-service program. producers and providers of our healthcare marketplace today in large measure are rewarded for greater volume and we need to change that. we will change that by changing the payment paradigm away from fee-for-service. that is going to have a huge and very consequential effect on the
way that healthcare is provided as we look to the next 10 years. but there it is delivery reform, recognizing the importance of good quality and the importance of best actresses, recognizing ways in which we can do things better. we have seen an enormous amount of change with the way that care is delivered with electronic devices. as we look to all of it, there is little doubt that health i.t. will likely be the backbone, the nerve center of this new health paradigm going forward and i'm very excited about what prospect there are for doing that. that is the executive and legislative and legal layers. the fourth is happening in the states themselves. they are really becoming incubators of change.
every state whether they are participating in a state exchanges becoming a real incubator of this transformation and it's exciting to see what's happening in virtually every state today. innovation has exploded. i just attended an innovation summit in ohio and it was just remarkable to see all of the new and exciting things going on in the states and that leads me to the final level and that is the private sector. that is where the greatest degree of innovation is really taking place, in norma's changes at all levels, payment, delivery, reform, new products, new opportunities, far more transparency, far more personal capacity for patients and individuals to be involved in their own health with a greater and greater emphasis on wellness rather than no mess.
those are the five areas in which i think you are going to see enormous change over the course of the next 10 years, change that i think is exciting and brings us closer to the high-performance, high-value healthcare marketplace that i think republicans and democrats, liberals and conservatives all aspire to. in closing, i would simply say that i think there are four important test of leadership that will ultimately determine whether or not we are successful . the first test of leadership is resiliency. in any transformational moment, we know there are going to be set ask. we know there will be lost yardage, fumbles, a great deal of frustration. we know that there will be losses and gains but the real question is this each time we are knocked down, each time we are struck with a loss, how resilient will we be? how able are we to pick ourselves up, learn from the experience and move on? i think americans are very resilient people. we have shown that now for more than 200 years. i'm reading a fascinating book about the man who united the states and it's an extraordinary book about the resiliency that our country has shown ever since
it was founded. i believe we will show that resiliency again in this even more transformational moment for health in america. the second is innovation. we need it now. if necessity is the mother of invention, innovation is really the key. i believe that we have already begun to see the capacity for innovation all across this country and public sectors. we're going to find innovative and new ways to push to address our challenges in some context of we have not even thought of today as we begin to look at the exciting possibilities and clearly innovation is a key. the third is collaboration. we have to recognize that in
this fragmented series of subsystems, we truly need to work even more closely together and that is why they need to be saluted for the work they're doing in bringing us together today. the collaboration like this, a collaboration among providers, collaboration between government and private entities, a recognition when he to integrate to become more cohesive, it is clearly a very key test that we will all face as we look at the future. the final issue is engagement. those who believe they can sit on the sidelines and not be engaged in public holocene fail to recognize the important interrelationship that exist today between public and private sectors in health at all levels. we have to be willing and prepared to be as engaged as if our lives depended on it. because they do.
i would simply restate the need for resiliency, the need for collaboration, the need for innovation, the need for engagement to determine whether successful as i know we can be in this transformational moment. henry ford once said, coming together is a beginning. staying together is progress. working together is success. let you would can work together as a country facing this tolerant dutch -- facing this challenge. transformational health care marketplace for all. thank you. [applause]
>> we have microphones if you want to raise your hands. we will bring a microphone to you. >> thanks for your remarks. you said that the ultimate objective on a bipartisan basis is a high-performance high quality marketplace. stopping with that word, do you think that where we are ultimately headed is a marketplace where health insurance plans, an exchange system that includes a larger share of the population so that the risk pool is larger, the risk can be spread more uniformly and there is more competition among plans to give us more incentive for quality and cost control. if that is true, noting that the affordable care act only takes us so far in that direction, where is the next step? >> that is a great question.
could you hear the question in the back? good. ok. again, in the interest of time, i haven't collaborated on my football field metaphor but i -- this gives me an opportunity to talk about it. what the affordable care act does is allow us to be on the football field for the first time in a meaningful way at about the 30 yard line. i think we have got 70 yards to go to reach our goal. in all of the categories that i glided over to quickly. we have a lot of work to do. we aren't anywhere near the quality, the access -- we may or may not be near the cost- containment aspirations we have permanently.
this is going to take a lot more work. it is going to take even more legislation. we don't have the capacity simply through the aca to get to the goal line in and of itself. what we have done is put the framework in place, creating a new paradigm that will allow us to make new improvements. i can take my fumble metaphor to this football field metaphor because there have been a lot of fumbles. i hope we can show the resiliency to keep going, to get down the field, closer to that goal line. i am confident we will. it will take everything i said as tests of leadership to make that happen. >> thank you. thank you very much for your wonderful talk and all that you
have done in this area. i would like to ask a question about what you described. it seems to me that the reforms one of the reasons we have the wrong incentives around the top of the pyramid is because that is where profits are. the private sector invests huge amounts of money there. are there additional policy changes that are needed that are not currently in aca that could help flip that incentive structure? and get the private sector to create a wellness industry? >> i appreciate the question a great deal. the answer is, we have put in place a number of new policy components that will begin to allow us to cover the entire pyramid. i don't think we will ever find a time when the american health sector diminishes in terms of importance, its reliance on technology. we are technologically driven in this country. that is a great asset in many
respects that it is a liability as well. it is an asset in that we have allowed the most technological means to be used in some cases that have really made a difference. some people confuse our technology with our system, our marketplace. they say, we have the best in the world but we don't have the best sector in the world. if you look at any performance criteria, i think we have the best technology in the world. a lot of people around the world want to access that technology. come to the united states to be able to do that. what this law does and what i think a growing consensus even in the private sector outside the law acknowledges is that if we are really going to make a difference in the new health paradigm, we have got to come to the bottom of the pyramid and recognize that is where the efficiencies are.
putting greater emphasis on wellness and less on illness at the top of the pyramid not only produces better results, but costs less money. it isn't that it has to be either or. our goal is to cover the entire pyramid. putting the balance where it really needs to be with a far greater emphasis and reliance on bottom of the pyramid care than we ever had in history. this law begins to do that but it is going to take a lot of additional effort. the eerie medical school is here and we were talking before about the emphasis on internal medicine and the need for more primary care. i was just delighted to hear that they are one of the top schools in the country now in offering good primary care education and internal medicine opportunities. i believe it is coming. it is a crass expression, but i think it is true, you have to follow the money. you have to follow the money with regard to reimbursement, with regard to educational
opportunities and where the money is for assistance for students, follow the money all the way through the process. i also think scope of practice is very critical. we have got to find that her balance with the way care is provided today. let's give nurses more authority than they have today. we can do a lot better in designating proper roles as we look at good prevention and wellness as well. >> hi, senator. i am with the national academy for state health policy. one of the areas you mentioned was the role of states. i was wondering if you could talk a little bit about some of the long-term consequences for the different experiences you will be having from state to state. i am thinking a state like new
york where they have done their own marketplace and they are expanding medicaid, consumers there are having a much different experience than maybe mississippi. >> i always thought that having models for state exchanges is really a good thing. we have the state models and we are already seeing in states like california and kentucky, a number of states, washington, connecticut, obviously massachusetts -- they have done extremely well and their performance ought to be highlighted and studied as to what it is they are doing that other states failed to do so far. the second model is the hybrid model where you have got partial federal involvement and partial state involvement. i think there is a lot to be said for that model as well.
maybe the federal government is in a better position to do somethings that the states can't do. especially in rural states like mine in particular, we may not have an adequate risk pool in small states to be able to handle the actuarial challenges that we will be facing going forward. it could be that that hybrid is the perfect solution for things like that. then, you have the federal exchange. those who believe we ought to try to nationalize our health care sector even more will see whether we can make it work. the early running would argue that states do a better job than the federal government at setting up the exchange, but it is early. it is too early to make any determination in that regard. i also think the states, right now, are doing such exciting things with regard to pilots and the studies that are underway
across the board. patron reform, delivery reform, new health paradigms, you have a lot of new organizational tests that are being examined, studied. i think we will learn a lot from that as well. then, i haven't mentioned medicaid. you have already got, what is it, 26 states that have signed up so far for the medicaid expansion. i think ultimately all 50 states will do it because this is something that from an economic as well as a health point of view is just too good to ignore. you are going to see tremendous innovation, a lot of innovation engagement, some real spectacular examples of health leadership.
we will glean a lot of information that i think will be applicable as we look to the future of health nationally. >> thank you very much. >> think you all very much. >> the care beneficiaries have until december 7 to change their health plans during the annual enrollment period. a house subcommittee on health will look at the affect the health care law is having on the medicare advantage program. live coverage begins tomorrow morning at 10:00 a.m. eastern on c-span 2. later, a house panel on veterans disability assistance will hear testimony about traumatic brain injuries, posttraumatic stress disorder and sexual assault claims. utterance affairs apartment -- veterans affairs department officials will testify. that starts at 3:00 p.m. eastern on c-span 2. >> several constitutional professors today criticized some of the executive actions taken by president obama, citing the new health care law and changes to immigration rules. that hearing is next on c-span. then, house members pay tribute to the victims of the metro- north train accident that killed four people in new york, sunday. that is followed by the u.s.
capitol christmas tree lighting. >> on the next "washington journal" representative jim mcdermott talks about the health care law. then house armed senate services representative duncan hunter talks about iranian nuclear program. and the recent launch a political magazine and the cover story of the relationship dream president obama's cabinet and his closest aides. also, your calls, e-mails, and tweets. >> next, the house judiciary committee examines president obama's use of executive powers. a panel of legal scholars testified of the white house decision to delay -- delayed the employer mandate in the health care law and about the
enforcement of immigration rules. this hearing is over three hours. [gavel] >> the judiciary committee will come to order without objection. the chair candy could be says is that any time. the chair welcomes members -- call recesses at any time. the chair welcomes the members. and these instructions will be removed. numbers of the audience must behave in an orderly fashion or else they will be removed from the hearing room. willie 11 of the house rules provides the chairman of the decorum andy order exclude members run the code -- from the meeting. down immediately or leave the room immediately or
they will be escorted from the room. they's hearing is about president's role in our constitutional system. our system of government is one with each branch having certain defining functions delegated to it by the constitution. the president is charged with executing the law with congress writing the laws and judicial interpreting them. carefullytution's balanced, separation of powers and unilaterally granted himself extra constitutional authority to amend laws and to lay or suspend their enforcement. this broad assertion of authority goes well beyond the executive power granted to the president and specifically violates the constitutional command that the president is to take care that the laws be
faithfully executed. the president's encroachment into congress's spirit of power is not a transgression that should be taken lightly. as english historian edward inbon's famously observed the fall the roman empire, the principles of a free constitution are irreparably lost. although the president's actions may not yet amount to the executives power overtaken the legislative power, they are certainly undermining the rule of law that is at the center of our constitutional design. from obamacare to immigration, the current omission is picking and choosing which laws to enforce. it is a bedrock principle. the president must faithfully
execute the act of congress. the president cannot enforce the law simply because he dislikes it. the obama administration has been equally asserted in the round of domestic policy routinely making and runs around congress through broad claims. limits. president obama is the first president since richard nixon to ignore and enacted law simply because he disagrees with it. in place of the checks and balances established by the constitution, president obama has proclaimed that "i refuse to take no for an answer." and "where congress won't act, i will." throughout the obama presidency,
we have seen a pattern. president obama circumvents congress when he does not get his way. for instance, while congress is currently debating how to reform our immigration laws, the president effectively and acted the dream act himself by ordering immigration officials to stop enforcing immigration laws against certain unlawful immigrants. when he couldn't get his preferred change to the no child left behind education law, he waived testing accountability provisions. when he objected to the work requirement, he granted waivers that are specifically forbidden by the statutory text. instead of working with congress to amend federal drug enforcement policy, he has instructed prosecutors to stop enforcing certain drug laws in certain states and mandatory minimum sentences for certain offenses. the president has without statutory authorization waived
suspended and amended several major provisions of his health care law. these unlawful modifications to obamacare include delaying for one year obamacare's employer mandate. instructing states that they are free to ignore the law's clear language regarding which existing health care plans may be grandfathered. promulgating an irs rule that allows for the distribution of billions of dollars in subsidies that congress never ups -- authorized. rather than embrace these legislative fixes, the president's response has been to threaten to veto the house- passed measures. the president's far-reaching claims of executive power if left unchecked will vest the president with broad domestic policy authority that is -- because diffusion does not grant him. those in the president's political party have been silent in the face of this dangerous expansion of executive power.
what would they say if the president effectively repealed the environmental laws are refusing to sue polluters or the labor laws by refusing to find violators. what if a president wanted tax cuts that congress would not enact? president george w. bush proposed a reduction in the capital gains rate. should she -- he have instructed the irs not to tax capital gains at a great greater than 10%? the point is not what you think of president obama's policy decisions. the point is, the president may not consistent with the command that he faithfully execute the laws, unilaterally amend, waive or suspend the law. we must resist the delivery pattern of circumventing the legislative branch in favor of administrative decision-making. we cannot allow the separation of powers enshrined in our constitution to be abandoned in favor of an undue concentration of power in the executive
branch. as james madison warned, the accumulation of all powers, legislative, executive and judiciary in the same hands may justly be pronounced the very definition of tyranny. i introduce mr. conyers for his opening statement. >> top of the morning to my colleagues. the president's constitutional duty to faithfully execute the laws would be an important issue worthy of hearing by this committee if there was any evidence that the president has indeed failed to fulfill his duty.
unfortunately, it appears that some here view policy disagreements as constitutional crises and proof of possible wrongdoing. the fact is that disagreements or even allegations that this has not been carried out the way congress has intended should not raise constitutional concerns. if some of my friends want to disagree with the administration, it is their right. but we should keep some perspective here and consider the following issues. to begin with, some of the administration's actions criticized by the majority are not really that much out of the ordinary. allowing flexibility is neither unusual nor a constitutional
violation. it is rather the reality of administrating -- administering sometimes complex programs. this has been especially true in the case of health care legislation. the affordable care act is not the first time implementation of a new law has not gone according to schedule. president george w. bush for example failed to meet some of the deadlines in medicare part d. even though it was legislation he strongly supported. it is especially interesting that some members who strenuously opposed the affordable care act and who worked diligently to obstruct
its implementation now complain that the president is unconstitutionally impeding the implementation of his signature legislative accomplishment. how interesting. taking steps to deal with the realities of implementation of a complex program hardly constitutes a failure to take care that the laws are faithfully executed. it is rather part and parcel of doing just that. administrations in the past have obstructed the implementation of laws they opposed but no one is seriously contending that president obama opposes the affordable care act, obamacare. or that his administration's actions constitute intentional obstruction of the law. when in the past there have been
legitimate concerns about delays in the law's implementation, parties have turned to the administrative procedure act. that act allows the courts to determine whether a delay is unreasonable and order appropr-qtq no one has alleged that such action is necessary here. instead, critics of president obama and his signature legislation allege a constitutional crisis but no court has ever found delay in implementation of a complex law to constitute a violation of the clause. some of my colleagues seem to think that the exercise of prosecutorial discretion, the power of the executive, is a constitutional violation. the decision to defer
deportation of individuals who were brought to the united states as children, who haven't committed felonies or misdemeanors and do not pose a threat to public safety, so- called dreamers, is a classic exercise of such discretion. the administration cannot legalize these individuals' status without a basis in law, but the administration's decision to defer action against particular individuals is neither unusual nor unconstitutional. the supreme court has consistently held that the exercise of such discretion is a function of the president's powers under the take care clause. for example, in heckler versus cheney, the court held that an agency's refusal to institute proceedings shares the
characteristics of a prosecutor in the executive branch not to indict. that decision has long been regarded as the special province of the executive branch in as much as it is the executive who is charged by the constitution to "take care that laws be faithfully executed." finally, i hope we can distinguish between failing to execute the laws and following the explicit dictates of the law. some here contend that the president's decision not to defend the defense of marriage act violated the take care clause. in fact, the president made a judgment subsequently vindicated by the united states supreme court that the act was
unconstitutional. while the case was pending, he continued to comply with the law. the president's decision not to defend the law was not novel. indeed, congress itself recognized this possibility.p congress understood that sometimes the administration's duty to take care that the laws be faithfully executed might include recognizing that a particular statute is unconstitutional. the constitution is as we are told in article 6 of the constitution, the supreme law of the land. presidents are required to follow it. past administrations have exercised their discretion not to defend a law that they have deemed unconstitutional.
for example, the acting solicitor general at the time, john roberts, now the chief justice of the united states, refused to defend a law that he believed to be unconstitutional in the 1990 case of metzer broadcasting versus the fcc. chief justice roberts argued that a statute providing for minority preferences in broadcasting was unconstitutional. despite supreme court precedent, he argued that strict scrutiny applied. legal counsel appeared to defend the law and prevailed. clearly, there were reasonable arguments that chief justice roberts could have made in
defense of the law, yet no one suggested that he violated the constitution by arguing for the court to strike that law down. his view was not vindicated in that case, but may ultimately have resulted in a shift of the law which makes it additionally clear that the administration's decision not to defend doma was neither unprecedented nor inappropriate. i join with all of the committee in welcoming our witnesses, look forward to their testimony, and i yield back the balance of my time. >> thank you, mr. conyers. all other members' opening statements will be made a part of the record. we welcome our panel of witnesses today. if you would all please rise, we will begin by swearing you in. do you and each of you swear
that the testimony you are about to give shall be the truth the whole truth and nothing but the truth, so help you god? let the record reflect that all of the witnesses responded in the affirmative. thank you. i will now begin by introducing our witnesses. our first witness is jonathan turley, a professor of public interest law at george washington university law school. professor turley is a nationally recognized legal scholar who has written extensively in areas ranging from constitutional law to legal theory. he has published over three dozen academic articles and over 750 articles in newspapers. professor turley has been recognized as the second most cited law professor in the country. our second witness is nicholas rosenkranz, a professor of law at georgetown. professor rosenkranz has served and advise to the federal government in a variety of
capacities including as a law clerk to a supreme court justice and as an attorney advisor to the justice department office of legal counsel. he has published numerous scholarly articles including the subjects of the constitution, which is the single most downloaded article about constitutional interpretation in the history of the social science research network. our third witness is simon lazarus, a senior counsel with the constitutional accountability center. he is a member of the administrative conference of the united states. he has served as the public policy counsel for the national senior citizens law center. mr. lazarus has written articles that have appeared in law journals as well as publications such as "the atlantic," "the washington post," and "the new republic."
our final witness has been recognized as an influential expert on the affordable care act. mr. cannon has appeared on abc, cbs, cnn and fox news and has written articles that have been featured in numerous newspapers including the wall street journal, usa today and the los angeles times. he is the coeditor of a book on replacing the affordable care act and the co-author of a book on health care reform. i would like to thank all of the witnesses for their appearance today. each of your written statements will be entered into the record in its entirety. i ask that each witness summarize his or her testimony in five minutes or less. there is a timing light on your table. when the light switches from green to yellow, you will have one minute to conclude your testimony. when the light turns red, it signals that the witness's five minutes have expired. we will turn first to professor turley. >> thank you.
it is a great honor to be invited to speak with you today. you have to forgive my voice. i'm getting over a cold. i hope to make it through this without having a coughing fit. this is obviously a difficult area of constitutional interpretation. as the ranking member pointed out, this is not the first time that we have dealt with this question. it is also difficult for some of us who happen to agree with the president's policies, which i do. i voted for him previously. however, it is often more important how you do something than what you do. the reason this is such an important thing is that the bedrock of our constitution remains the separation of powers. it is often misunderstood as some type of conflict between branches. it is really a protection of
liberty. it allows for issues that divide us to be cycled through a system in which factional interest can be transformed. even though all bridges are equal, the congress is the thumping heart of that system. it is where issues are transformed. it is the very reason that our system has survived so well. it brings stability to the system. benjamin franklin used to say that god helps those who help themselves. in our system, the constitution helps those branches that help themselves. it is designed to give each branch the ability of self protection and a great deal rides on the use of that power. in my view, some of the questions we are going to talk about today are closed questions. things like internet gambling,
drug enforcement, i think you can have credible arguments on the administration's side. some of them, i believe are not close questions. i believe the president has exceeded his brief. the president is required to faithfully execute the laws. he is not required to enforce all laws equally or commit the same resources to them, but i believe the president has crossed the constitutional line. what i want to start is to emphasize that this is not a turf fight between politicians. rather, this goes to the very heart of what is the madisonian system. if a president can unilaterally change the meaning of laws in substantial ways or refuse to enforce them, it takes off-line that very thing that stabilizes our system. i believe that members will loathe the day that they allow that to happen.
this will not be our last president. there will be more presidents who will claim the same authority. when i teach constitutional law, i often ask my students what is the limiting principle of your argument? when the question is presented to this white house, it is answered in the first person, the president is the limiting principle. we can't rely on that type of assurance in our system. the greatest danger of nonenforcement orders is not what introduces, but what it takes away. what it does, it allows for these issues that divide us to be resolved unilaterally. we don't have a dialogue anymore. someone can step in and make the legislative process simply an option. it is here in congress that factional interests coalesce and convert. this is the transformative branch.
that is what makes this so dangerous. what madison did is created an orbit of branches. there is a belief that these are three branches that exist in orbit. they are held together by their gravitational pull. it is a delicate balance but it is one that protects individual liberty. federalist 51 is one of the most cited sources for madison's views. this congress has allowed its core authority to drain away. i have written about the rise of what is called the fourth branch, this expanding number of federal agencies that are acting increasingly independently, even defining their own jurisdiction.
if that trend is to continue and the president power is continue to expand, congress will be an imaginary line on the constitutional landscape. a sad relic of what was once a tripartite system of equal branches. there are times of bitter intractable divisions, but the members of this body are tied by a covenant of faith. it is found in article one, all legislative powers shall be vested in the congress of the united states. it is upon that covenant that we shouldn't divide by parties and we should stand firmly for the separation of powers. >> mr. rosenkranz, welcome. >> thank you members of the committee. i thank you for the opportunity
to express my views about the president's constitutional duty to take care that the laws be faithfully executed. i agree -- >> check your microphone and pull it closer to you. >> can you hear me now? all right. to speak about the take care clause, i want to associate myself with professor turley's opening statements. i agree with all of his remarks. i would like to draw the committee's attention to the text of the clause. it is best to begin by parsing the actual words. notice that this clause is not a grant of power, but the imposition of a duty. the president shall take care. this is not optional. it is mandatory. note that the duty is personal. the execution of the laws may be dedicated to other officers, but the duty to take care that the
laws be faithfully executed, that is personal. third, notice that the president is not required to take care that the laws be completely executed. that would be impossible given finite resources. the president does have power to make enforcement choices, however, he must make them faithfully. it is important to remember that historical context of the clause english kings had claimed the power to suspend the laws unilaterally. the framers expressly rejected that practice. here, the executive would be obliged to take care that the laws be faithfully executed. it is possible to view some recent controversies through this precise proper constitutional lens.
i am going to focus on three examples. the president's unilateral decision to suspend certain provisions of the affordable care act, the president's unilateral abridgment of the immigration and nationality act, and on the irs's targeting of the president's the lyrical adversaries. first, the obamacare suspension. on july 2, 2013, just for the long weekend, the obama administration announced that the president would unilaterally suspend the employer mandate of obamacare, notwithstanding the unambiguous command of the law. the statute is perfectly clear. it provides that the provisions become effective on january 1, 20 14. the blog post makes no mention of the statutory deadline. this raises the question of what it means to take care that the laws be faithfully executed. the scope of that discretion can
be the subject of legitimate debate. this is not a mere calibration of executive resources. this is wholesale suspension of law. whatever it may mean to take care that the laws be faithfully executed, it simply cannot mean declining to execute a law at all. the president's remarks on this issue were quite striking. he said he would actually prefer to simply call up the speaker of the house to request a change in this law that would have achieved the desired delay, but the truth is, he wouldn't have needed to pick up the phone.
the house had already passed the authority for mandate delay act. the president actually threatened to veto it. this seems almost like a willful violation of the take care clause. a second example, the immigration and nationality act suspension which the chairman mentioned. i will just mention briefly -- what a striking about this is the president's decision to enforce the immigration laws as though the dream act had been and acted when in fact, it has not. in this case, it is almost a mirror of the other case. rather than declining to comply, the president is complying meticulously but with a bill that never became a law.n congress has repeatedly considered a statute called the dream act. the president favors this act. congress repeatedly declined to pass it. the president has announced that he would enforce the act as
though it had been enacted. the president's duty is to take care that the laws be faithfully executed. not those bills which fail to become law, like the dream act. finally, i will mention the irs targeting. if the adverb "faithfully" means anything, i would say that it means non-discriminatorily. the president cannot enforce the laws in a discriminatory manner. the story of the irs targetings the application of the tax laws to the president's political enemies in a discriminatory way this is perhaps the single most troubling type of enforcement discrimination. in a way, perhaps the most
troubling violation of the president's publication to take care that the laws be faithfully executed. thank you. you mr. lazarus, welcome. >> thank you very much, mr. chairman. thank you all members of the committee who are here. i have to disagree with my colleagues on the panel who have spoken so far. brandishing the take care clause has become a favored talking point for opponents of an array of obama administration policies and actions. all of these efforts, or at least the ones with which i am familiar, are in reality -- all these efforts to import the constitution into what are in reality political and policy attacks, are really rhetorical.
they mocked the text and original meaning of the take care clause. they flout supreme court precedent and they contradict the existing practice of all modern presidencies, republican and democrat to implement regulatory programs. these critics fault the obama administration for many things, but essentially, two kinds of things. one, making necessary adjustments in timing of implementation of laws, particularly the affordable care act. second, in matching immigration and enforcement priorities with available resources and practical humanitarian and other exigencies. exercising presidential judgment for such reasons is precisely what the constitution requires. is precisely what the framers expected when they established a
separate executive branch under the direction of a nationally elected president and charged him to take care that the laws be faithfully executed. let's take a quick look at one of the targets of these charges. that is the phasing in of the aca employer mandate which has been called a blatant illegality and many other things. it is a routine temporary course correction. what did the administration do? it announced a decision to postpone for one year the january 1, 2014 effective date for the aca requirement that large employers provide their workers with health insurance or pay a tax. this and other subsequently announced the lays do not constitute refusal to enforce the aca. on the contrary, they are merely phasing in adjustment designed to ensure effective implementation in accord with congress's purposes.
the proposed regulations that it has followed through on on september 5 make that clear. as does the treasury's statement that it intends to continue fine-tuning those regulations and working with the people affected by them until they become effective. i should emphasize that just after the administration took this action, president george w. bush's hhs secretary concurred that the obama administration's decision to delay the employer mandate was wise. that was based on his experience in phasing in the medicare part d prescription drug benefit. hyperventilating about how extraordinary and unprecedented and unconstitutional these
delays are is just that, hyperventilation and contrary to obvious historical fact. nor is the one-year delay of the employer mandate an affront to the constitution. the framers could have prescribed that the president execute the laws, so why did they add fitfully and take care? i have to disagree with professor rosencrantz and professor turley about their explanation of the history and original meaning of the clause. they were taking pains to clarify that the president's duty is to implement laws in good faith. and to exercise reasonable care. the fact is that scholars on both left and right concurred that this broadly worded phrasing means that the president is to exercise judgment and to handle his enforcement duties with fidelity to all laws including the constitution. as a legal and practical matter,
the president's phasing in of the employer mandate is well within his job description. so is the program that deferred action on child arrivals. congressman conyers explained why that is true. in my written statement, i do so also. i have to say one quick word about what i know that my good friend and frequent debating partner michael cannon is going to focus on. that is his theory -- he gets credit for it -- his theory that affordable care act premium assistance tax credits and subsidies must be available to all -- his theory that they are only available to americans who
happen to live in states that have set up their own exchanges. i can't go into detail about this, unfortunately. perhaps in the questioning i will be able to do that. his theory is that a few phrases in this enormous statute have to be construed in a way that would stiff millions of people who were the intended beneficiaries of the act -- am i over? i am over. the fact is that that is not the correct construction of the act. >> thank you, mr. lazarus. mr. cannon, welcome. >> thank you, members of the committee. i want to start off by saying the concerns i am sharing with you today are not born of partisanship. i have worked for republicans. i am not a republican.
i am acutely aware of the last republican president's failure to execute the laws faithfully. in 2008, though i supported neither presidential candidate, i actually preferred barack obama to his opponent in part because he promised to curb such abuses by the executive. i praised him for doing more than many libertarians to celebrate the gains in equality and freedom our nation has secured for women, african- americans, gays and lesbians. article two section three of the constitution to which every president swears an oath commands that the president shall take care that the laws be faithfully executed. this duty is essential to our system of government and public order. public order requires governments to remain faithful to the law as much as it requires the citizenry to do so. if the actions of government
officials leave citizens to conclude that those are not meaningfully bound by the law, then they will conclude that neither are they. since he signed the patient protection and affordable care act into law, president obama has failed to execute that law faithfully. the president has unilaterally taken taxpayer dollars and diverted them from their authorized purposes toward purposes for which no congress has ever appropriated funds. he has repeatedly rewritten the statute to dispense taxpayer dollars that no federal law authorizes him to spend. he has unilaterally issued blanket waivers to requirements that he is not authorized to waive. he has declined to collect taxes that he is ordered to collect. he has rewritten the statute to impose billions of dollars in taxes.
he has unilaterally rewritten to allow health insurance products that the statute expressly forbids. he has encouraged consumers, insurers and state officials to violate a law that he himself and acted. he has taken these steps for the purpose of stalling democratic action by the elected representatives in congress. president obama's unfaithfulness is so wanton that it is no longer accurate to say that statute is the law of the land. at least the law of the land is what whenever -- one man says it is. what this one man says may flatly contradict federal statute and confer benefits on favored groups or tax disfavored groups without representation. it may undermine the careful and costly planning done by millions of individuals and businesses. it may change from day-to-day. this method of lawmaking has more in common with monarchy
than with democracy or a constitutional republic. this failure to honor his constitutional duty to execute the laws faithfully is not a partisan issue. it guarantees that presidents from both parties will replicate and even surpass the abuses of their predecessors as payback for past injustices. freedom will suffer no matter who occupies the oval office. i thank you and i look forward to your questions. >> thank you, mr. cannon. i will begin the questioning. professor rosencrantz, often times the legislative process is about negotiation, about givev4 and take -- how does the president's amending, suspending and ignoring acts of congress at will affect the legislative process? >> that is a great question, mr.
chairman. the short-term effect is an aggrandizement of the president. a long-term effect is legislative gridlock. there is every reason to believe that congress will not be able to reach compromises if they know that these compromises can be unilaterally rewritten in the white house. every reason to believe that congress will grind to a halt under the threat that president obama will rewrite its handiwork. >> would you argue that that is indeed happening right now? as you try to work out differences between various perspectives on a piece of legislation, those who may be asked to give something that they think the president agrees with them on might say, why should i give on that? i can get that changed or done unilaterally by the executive branch. or the party that wants to achieve that says, why should i agree to it? >> you could imagine such a negotiation about the effective
date of obamacare. after the statute is passed, president obama decides that the effective date is regardless of what congress wants. >> mr. turley, the constitution's system of separated powers is not simply about stopping one branch of government usurping another. it is about protecting the liberty of americans from the dangers of concentrated government power. how does the president's unilateral modification of acts of congress affect both the balance of power between the political branches and the liberty interest of the american people? >> the danger is quite severe. the problem is that he is not simply posing a danger to the constitutional system. he is becoming the danger that the constitution was designed to avoid. this newtonian orbit that the three branches exist in is a delicate one. it is designed to prevent this type of concentration. there are two trends going on
which should be of equal concern. one is we have had the radical expansion of presidential power under both president bush and president obama. we have what many was called an imperial president model. with that trend, we also have the continued rise of the fourth branch. we have agencies that are now quite large that issue regulations -- the supreme court said that agencies could define their own jurisdiction. >> i have a couple more questions to ask. mr. cannon, you have argued that the president is going to spend billions of dollars congress did not authorize, provide premium assistance, tax credits and subsidies on federally run health care exchanges. can you walk me through why the president's plan to provide premium assistance is indeed illegal? >> we call those tax credits because that is what the statute calls them.
they are government subsidies. the statute is clear. it is consistent. it said that those premium assistance tax credits would be available only to people who purchase health insurance through an exchange established by the state under section 1311. the phrase is mentioned several times explicitly. the statute is very tightly worded. it makes clear that those tax credits are available only if a state establishes an exchange itself under section 1311, if the government establishes a fallback exchange, those credits are not available as the obama administration has acknowledged in regulation. >> thank you. i agree. professor rosenkranz. some defenders of the president's actions asserted that his actions were merely the phrase is mentioned several
times. tax an exercise of prosecutorial discretion. is this correct or is there a fundamental difference between that and many of the president's unilateral actions? >> there are many cases that are cases i agree with professor turley but some of these cases are not close. prosecutorial discretion is one thing but wholesale suspension of law is something else. that is what has happened under obamacare. likewise in the immigration context. case by case prosecutorial discretion is one thing but a blanket policy that the immigration acts will not apply to 1.8 million people is quite something different. this is a scale of decision making that is not in traditional conception of prosecutorial discretion. >> in fact, the president has taken it a step further and given legal documents to people in that circumstance to leave them there and not prosecute them and actually enable their
>> my time has expired. >> thank you. i'm interested in the presentation -- professor lazarus -- differences with the witness to his left and i would like to ask if he could pick up that line of discussion. we're pleased that you're here because there has been so much excitement or excited rhetoric about where the president and his administration are going,
i've never heard this level of hypothesizing as to where this is all going to take us. i think it is considerably over the top. i'm so glad you're here today and i would ask you to respond, please. >> thank you very much mr. conyers. the theory of -- that the affordable care act actually intended to cut off the very benefits that the law was passed to create to the very core constituency of needy people that was a target of the law, that my friend mr. cannon came up with, is something that no one on either side of the aisle had any idea about when the law was passed. he and some other clever colleagues came up with this theory at least nine months i think after the law was passed.
and the fact is, and they have gloated that their theory as adopted by the courts would drive a stake through the heart of obamacare. that is their words. it would sink the a.c.a. and threaten its survival. in fact, however, the law's text does not sabotage the universally acknowledged purpose of ensuring access to all americans who can not now afford it. to make their case to the contrary, mr. cannon and his colleagues snatched a few isolated words out of context and ignored the rest of this huge statute. but if you look at the entire statute, you quickly have to conclude that the whole text, not just the isolated phrases mean harmonize, the purpose of
the statute with its text mean that, all americans who are eligible for the benefits to enable them to afford insurance will be able to have them whether or not they reside in federal exchange states or state exchange states. i want to add just one quick thing. that is -- so mr. cannon and his friends soon realized that their reading of the text didn't make sense and they came up with an even more head-scratching claim. that is that the sponsors of the law "intentionally and purposely designed it to achieve this self immolation." what this means is it means that the a.c.a. sponsors actually intended not only to stiff the very people that they wanted to benefit. it actually means that they
intentionally handed over to mr. cannon's allies in state capitals, the stake that he talks about, and invited them, if they chose to do so, to drive it through the heart of the a.c.a. you have to imagine, in order for your theory to make sense, one has to imagine senator baucus, senator murray, senator reid, that well known soft touc@ senator schumer getting together in a room off the senate floor and saying i know what we're going to do. we're going to enable all the republican governors and state legislators just to decide the a.c.a. won't work in their states. there is not a single piece of evidence to support this notion. and what is really going on, i'm afraid, is that having lost politically, having lost in the supreme court, the a.c.a.
opponents who are clinging to this theory are hoping that the courts will bail them out once again. that is an awful big political lift. i don't think that the courts are going to do that. >> thank you so much. mr. chairman, i would ask unanimous consent to put in the record this report by the new republic of november of this year entitled "obamacare's single-most relentless antagonist," who is our distinguished witness here today. >> reserving -- could i just ask one quick question? is the new republic doing reports or articles? >> reports or articles? i can't tell you. you mean on the one that i'm introducing? >> yes, mr. ranking member. i only ask, i'm fine to have newspapers and op-eds put on the record.
i just want to have them characterized not as a report as though they have some substantive factual backing. >> i've never been asked this question before. >> only because i'm often called the president's antagonist. i'm not sure that a report that left me out would be justified as factual. [laughter] >> without objection, the new republic article entitled obamacare's single most relentless antagonist, i'm sure that both the author of the theory with regard to the federal use of those funds and the gentleman from california would both be proud to have the article in the record and therefore we will without objection make it a part of the record. >> i'm sorry to disappoint my friend whose name isn't even mentioned in this article. >> oversight. >> thank you, mr. chairman.
>> the chair recognizes the gentleman from texas, mr. smith, for five minutes. >> thank you, mr. chairman. mr. chairman, in my judgment, the president has ignored laws, failed to enforce laws, undermined laws and changed laws, all contrary to the constitution. it seems to me that the president is trying to make laws by executive decree at news conferences. but in a 2012 interview, the president said that he could not wave away the laws that congress puts in place and the president doesn't simply have the authority to ignore congress and say we are not going to enforce the laws that you passed. yet it seems to me that that is exactly what he has done. i would like to address my question to professor turley and professor rosenkranz and director cannon. the question is do you think the president has acted in contrary
to constitution? you mentioned you supported the president's policies and even voted for him yet you say he has crossed the constitutional line. the legislative process is not an option. what the president has done is dangerous. so i assume your answer is yes, the president has acted contrary to the constitution. is that right? >> it is. i would also just add, congressman, that this was an issue the framers considered. 150 years before they drafted this provision, which didn't change much in the committee, this was a fight with james i. the framers were very familiar with it. i think that is what gave life to this very clause. >> thank you. professor rosenkranz, do you think the president has acted contrary to the constitution? >> i would say that some of these cases are close cases and some are not. so the wholesale suspension of law, for example, is i would say
the paradigm case of a take care clause violation. yes. >> thank you. director cannon? >> yes. >> thank you. my next question is a little bit tougher. that is what can congress or the american people do about it? how can we restrain the president from acting in a way contrary to the constitution? and professor turley? >> that is i think the most difficult question that we face. i've had the honor of representing members of both parties of congress in going to the court and the courts are quite hostile to a member in standing when they believe a violation of the constitution has occurred. it is in fact members standing that would solve many of our problems. that is if members could go to the courts and raise violations of the constitution, that would be -- it would make much of these difficulties go away. you'll note that the administration has made reference to the fact and i think they have some support for this.
they doubt people would stand to challenge many of these acts. something the framers would never have accepted. you can have violations of the constitution yet no one can raise the issue successfully with the courts for review. >> professor rosenkranz? >> i'm not sure i agree with professor turley on the standing question. it is quite true that some of these violations may not be amenable to judicial review. ultimately, though, the check on this sort of constitutional violation is elections. so this is exactly the sort of hearing we ought to be having. the sort of hearing the electorate ought to be paying attention to for our next round of elections. >> thank you, and director cannon? >> i think there is little that congress can do if it is divided over the president's abuse of his authority. but fortunately, and as far as judicial remedies go, it is difficult to challenge when the
president relaxes an obligation on a certain party, it is much easier to find a plaintiff has standing to challenge an action that imposes due obligations that the legislature has never approved. that is what has happened in the case of the president issuing premium tax credits through federal exchanges because they will trigger taxes, tax penalties on employers and individuals in those 34 states that have refused to establish an exchange and a number of those employers and individuals, including two state attorneys general, 15 indiana school districts and a dozen more private employers and private citizens have filed suit. four different lawsuits. in fact one of them will have oral arguments this afternoon in washington, d.c. there is judicial remedy for some of these abuses. >> ok, good. thank you, director cannon.
thank you, mr. chairman, yield back. >> chair now recognizes the gentleman from new york. mr. nadler. five minutes. >> thank you, mr. chairman. professor rosenkranz has written in the "wall street journal" an op-ed piece abraham lincoln would not approve to have delay in the employer mandate. would you comment on that, that lincoln would disapprove? >> i read that article with some amusement, i have to say, professor rosenkranz. i think that president lincoln would chuckle at the notion that there is an equation between suspending the writ of habeas corpus with a temporary delay in the implementation of regulation that is part of a very complex
new law, which is something that happens under all administrations, it has to happen sometimes for practical reasons. why we are making a big fuss about this as a constitutional matter, is not beyond me. i understand why it is being done. if it sounds like politics, that is what it is. position. >> i have too little time for two little questions. let me start by saying that i generally in many respects agree with professor turley about the growth of the presidency over the last half century or more. i am particularly concerned about the abuse of the war powers by many president and the state secrets doctrine for the enforcement of constitutional rights and a surveillance under bush and obama